from the sad dept

Last summer, MIT tried (weakly) to defend what it called its "neutral" stance on Aaron Swartz, allowing the case to proceed even though the only party that had a legitimate claim to "harm," JSTOR, had come out almost immediately after Swartz's indictment to say that it did not support the prosecution. Around the same time, we noted that MIT was in the midst of a legal fight to block the release of Swartz's Secret Service file. Some found this effort a bit odd -- but the reasons are now becoming clear. An investigative report by the Boston Globe, scouring 7,000 pages of discovery documents in the case, found that some employees at MIT appeared to gleefully support going after Swartz with all of the powers of the DOJ.

In a handful of e-mails, individual MIT employees involved in the case aired sentiments that were far from neutral. One, for example, gushed to prosecutor Stephen P. Heymann about the quality of the indictment of Swartz.

“Nicely done Steve and kudos! All points . . . are as accurate as I’ve ever seen,” wrote the information technology employee. “(I only say that because every time I’ve ever given an interview, details are always slightly to horribly munged; not that I ever expected any less, it’s just a true relief and very refreshing to see your accuracy and precision).”

Elsewhere, it becomes clear that MIT helped escalate the case when calling in law enforcement. The Globe highlights a note taken by an MIT library staffer who noted that it was "now a federal case" and "All we provide is by choice -- not subpoenaed." Even more damning, a senior MIT network engineer basically seemed to think he was now working for the DOJ:

That cooperation with law enforcement also extended to a senior MIT network engineer who monitored traffic to and from Swartz’s laptop and appeared to be looking to Pickett for instructions. On Jan. 5, having collected 70 gigabytes of network traffic, he e-mailed the agent, “I was just wondering what the next step is.”

The documents also demonstrate that MIT employees "prodded JSTOR to get answers for prosecutors more quickly -- before a subpoena had been issued." That hardly seems "neutral."

The report also notes that MIT -- as admitted by an internal investigation -- "paid little attention to the details of the charge" including the key fact that the CFAA charge depended on this being "unauthorized access." However, since MIT's network was wide open to guests, it was hard to say that it was unauthorized. Yet MIT did little to explain that to prosecutors.

The report also delves into JSTOR's side of things, suggesting that, contrary to its public stance, before Swartz was revealed, it too was pretty angry (often at MIT) and considered calling in law enforcement repeatedly. However, in the end it appears that cooler heads prevailed there, as the organization decided not to pursue those actions. If only the same had happened at MIT.

from the overreach dept

Just last month, we wrote about how some hackers have moved on from installing malware to send out spam or to keylog your bank account info, to pushing hidden Bitcoin mining software instead, using up spare processing power on unsuspecting users' computers, hoping to build big enough Bitcoin mining networks to actual score some Bitcoins. While this particular practice is both illegal and shady, we did note that it wasn't difficult to envision perfectly legal and useful variations on this, in which users consented to allowing their spare cycles to be used this way, just like various other distributed computing projects like the classic SETI@Home project.

Apparently, at a hackathon back in November, some MIT students hacked together a proof-of-concept version of this kind of thing called Tidbit. As the EFF explains:

Tidbit uses a client's computer to mine for Bitcoins as an alternative to website advertising: in exchange for removing ads from a website, a user would give some CPU cycles to mine for Bitcoins instead. Tidbit was clearly presented as a proof of concept, with the developers making clear the code was configured not to mine for Bitcoins. That's because in addition to refining the code, they needed to work out the legal details, like drafting a terms of service, and the ethical details, like making sure there was a way for users to opt-in to the service so their computers weren't being used to mine Bitcoins without their knowledge. Tidbit won the Node Knockout award for innovation and the students thought they were on their way to continuing with their project.

Again: it was a proof of concept that couldn't actually mine Bitcoin, and the developers were working on ways to make sure that it was only useful for legitimate purposes before releasing the software. But, it appears that New Jersey's grandstanding acting Attorney General John Hoffman (who has gone after some app makers who had installed secret Bitcoin miners with apps), along with Deputy Attorney General Glenn Graham, suddenly decided that this proof-of-concept software must be illegal as well, and sent over a ridiculously overbroad subpoena. EFF is now helping the developers fight that subpoena.

As EFF explained in a letter to Graham, the whole effort was ridiculous. Not only do the developers have nothing at all to do with New Jersey, but the code is just a proof of concept and isn't being used for any actual Bitcoin mining -- and the whole point was to use it with consent for legal purposes. New Jersey sent back a somewhat obnoxious letter, basically saying, "screw you, we're New Jersey, you must respond to the subpoena."

Tidbit, with the help of EFF, has now filed a motion to quash the subpoena. Yes, Bitcoin is an emerging field right now, and the regulations around it are a bit up in the air. But there's no way to look at this other than as a massive overreach by politicians in New Jersey who have suddenly decided that any Bitcoin mining app must be up to no good. Hopefully the courts recognize that this is just a massive overreach on several different levels.

from the urls-we-dig-up dept

Providing digitally-distributed educations isn't as scalable as it might seem. Some topics, like math, might be a bit easier to teach with YouTube-esque videos, but some subjects may need a bit more of a human touch. Massively Open Online Courses (MOOCs) are still in the development phase, so they may one day overtake traditional classes (but not right now..). Here are a few online courses to keep an eye on to see if they rate better than "needs improvement" someday.

from the vindictive-doj dept

A few weeks ago, we wrote about the MIT report concerning the case against Aaron Swartz. A number of people have picked up on some really questionable things in the report. One incredible claim made in it was that Assistant U.S. Attorney Stephen Heymann, who was running the prosecution against Swartz, apparently admitted that he really only ramped up his efforts against Swartz to punish Swartz and the organization he founded, Demand Progress, for having the audacity to discuss the case publicly and explain why Swartz believed he didn't do anything wrong. Here's the passage from the report:

The prosecutor said that, pre-indictment, he had wanted to approach the case on a
human level, not punitively. To this extent he made an extremely reasonable
proposal, and was "dumb-founded" by Swartz's response.

The prosecutor said that the straw that broke the camel's back was that when he
indicted the case, and allowed Swartz to come to the courthouse as opposed to
being arrested, Swartz used the time to post a "wild Internet campaign" in an
effort to drum up support. This was a "foolish" move that moved the case "from a
human one-on-one level to an institutional level." The lead prosecutor said that on
the institutional level cases are harder to manage both internally and externally

MIT used this to explain why it thought that any public statements it might make in support of Swartz would make the case worse for him, because Heymann, in his petty vindictive mind, might view it as a further "wild" public campaign by Swartz. Leaving aside that this makes absolutely no sense at all, the actions of Heymann are particularly despicable here, suggesting that merely professing your innocence to crimes that you believe you are innocent of, should lead to much greater prosecution.

This passage has now caught the attention of Rep. Darrell Issa, and he is asking Attorney General Eric Holder about whether or not the DOJ directly comes down hard on those who exercise their First Amendment rights in the face of questionable prosecutions:

"The implication that the Department ratcheted up the prosecution by moving the case to 'an institutional level' after it discovered the petition by Demand Progress suggests that the Department acted in a retaliatory manner and that it bases its charging decisions on externalities such as an Internet campaign," Issa, who chairs the House Oversight Committee, wrote in his letter to Holder.

"The suggestions that prosecutors did in fact seek to make an example out of Aaron Swartz because Demand Progress exercised its First Amendment rights in publicly supporting him raises new questions about the Department's handling of the case," Issa wrote.

A separate point that comes out in the report that is equally as absurd was that Heymann believed that the case required some jail time as punishment because it "involves the unauthorized downloading of intellectual property that cost millions of dollars to create." This is ridiculous on so many levels. First of all, MIT made those works freely available to anyone on campus, so the argument that it was "unauthorized" remains very questionable. Second, the "cost millions of dollars to create" argument is simply laughable. Nearly all of that was publicly funded by taxpayer money, which is supposed to lead to the enrichment of public learning and knowledge -- the exact thing that Swartz appeared to be focused on. This ridiculous belief that he needed to be put in prison because of the monetary cost of creating these educational works is astounding. And sad, given the eventual outcome.

It's no secret that the DOJ often seems to think that "intellectual property" laws are designed to protect the moneyed interests of copyright holders, but that's not what the Constitution or the law says. At the very least, the people hired as US Attorney's to represent the US government should know better than to ratchet up prosecution for people who are expressing their First Amendment rights and doing things that directly align with the Constitutional reasons for copyright law.

Assistant US Attorney Stephen Heymann is a disgrace to the Constitution he's supposed to be defending.

from the sometimes-remaining-neutral-is-a-bad-thing dept

It's taken some time, but the report that MIT's President requested from professor Hal Abelson concerning MIT's roles in the prosecution of Aaron Swartz has now been released. It's quite detailed and well worth reading. The "bottom line" is that it argues that MIT did its best to "stay neutral" throughout the entire process, and that this was a perfectly reasonable legal strategy, though, possibly not the best ethical strategy. MIT's President, Rafael Reif, has issued a letter with the report, stating that "I am confident that MIT's decisions were reasonable, appropriate and made in good faith." Taren Stinebrickner-Kauffman quickly hit back, arguing that the claim that MIT was "neutral" is not very convincing:

MIT’s behavior throughout the case was reprehensible, and this report is quite frankly a whitewash.

Here are the facts: This report claims that MIT was “neutral” — but MIT’s lawyers gave prosecutors total access to witnesses and evidence, while refusing access to Aaron’s lawyers to the exact same witnesses and evidence. That’s not neutral. The fact is that all MIT had to do was say publicly, “We don’t want this prosecution to go forward” – and Steve Heymann and Carmen Ortiz would have had no case.

Separately, she contrasts MIT's behavior with JSTOR's -- the organization which really had the only legitimate (and even then a weak legitimacy) claim to any "harm" from Swartz's actions. JSTOR very publicly made it known that it did not support the prosecution and did not wish to see Swartz prosecuted. MIT took a very different approach. From the summary of the paper:

MIT never requested that a criminal prosecution be brought against Aaron
Swartz. Early in the prosecution by the U.S. Attorney’s Office in Boston (the
“USAO”), MIT adopted a position of remaining neutral, with limited
involvement. MIT hired outside counsel who had experience in criminal law
and in the functioning of the Boston U.S. Attorney’s Office; and MIT
requested and received subpoenas for the production of documents. Some
documents were turned over to the USAO prior to receiving a subpoena, but,
for the reasons discussed in this report, this production did not violate federal
laws.

In keeping with its stance of neutrality, MIT never issued a public statement
about Swartz’s prosecution or advocated publicly on his behalf, even though
doing this was urged by Aaron Swartz’s family and legal team and by two
members of the faculty. One of the reasons for MIT’s silence was the good-faith belief, based on private conversations with the lead prosecutor, that the
Institute’s opinion would have no effect on the prosecution, and that public
statements might make circumstances worse for Aaron Swartz. MIT did
inform the prosecution that it was not seeking punishment for Swartz, and it
did inform the defense that it was not seeking any civil remedy from him.

The report also claims that, basically, no one in "the MIT community" seemed to care about the story until after Swartz's death, which seems like a bit of a cop out. Also, there's this:

MIT took the
position that U.S. v. Swartz was simply a lawsuit to which it was not a party,
although it did inform the U.S. Attorney’s Office that the prosecution should
not be under the impression that MIT wanted jail time for Aaron Swartz. (MIT
did not say it was actually opposed to jail time.)

Basically, this policy of "neutrality" may have been legally reasonable, but could still be seen as highly questionable given MIT's role as an institution of higher learning -- one that famously encourages open exploration and sharing of knowledge and information, as well as some element of hacking. I think David Weinberger makes the right point here:

When Pres. Reif writes that MIT’s actions were “reasonable, appropriate and made in good faith” I think we have to ask “Appropriate to what?” To MIT’s interests as a legal entity? Very likely. To MIT as a university? Not in my book.... MIT’s timid “neutrality” wasted an opportunity to stand against the unreasonable and inappropriate tactics of the prosecutors, and to stand for the spirit of inquiry, openness, innovation, and risk-taking that has made MIT one of the world’s great universities.

I understand that MIT wasn’t going to say that it was fine with Aaron’s breaching its contract with JSTOR. But MIT could have stood against prosecutorial overreach, and for the values— if not the exact actions— Aaron embodied.

That's exactly right. Sometimes taking a neutral stance on an issue of great importance is the equivalent of making the wrong choice. MIT missed the boat here.

As far as the Review Panel could determine, MIT was never asked by either the prosecution or the defense whether Aaron Swartz’s access to the MIT network was authorized or unauthorized—nor did MIT ask this of itself. Given that (1) MIT was the alleged victim of counts 9 and 12, (2) the MIT access policy, its Rules of Use, and its own interpretation of those Rules of Use (including the significance or “materiality” of any violation of those terms) were at the heart of the government’s CFAA allegations in counts in both indictments, and (3) this policy and these rules were written, interpreted, and applied by MIT for MIT’s own mission and goals—not those of the Government— the Review Panel wonders why.

As Lessig points out, this makes the tragedy of the situation even worse. Not only did MIT try to take a "neutral stance," nobody either at MIT nor among the prosecutors ever even bothered to figure out if Swartz's access really was unauthorized.

from the sharing-of-knowledge dept

It's not all that uncommon to see government agencies try to refuse to release information that is subject to a Freedom of Information Act (FOIA) request -- but to have a non-governmental third party jump into a FOIA request to seek to block the info from being released? That's pretty damn rare. But it's happened -- and, amazingly, the third party is MIT, a school that is supposedly dedicated to advancing knowledge. Except, apparently, if that knowledge is going to make MIT look bad.

We recently noted that Judge Colleen Kollar-Kotelly had ordered Homeland Security to release the Secret Service file on Aaron Swartz that had been requested by Wired reporter/editor Kevin Poulsen. However, MIT has now stepped into the case trying to block the release of the information. The judge has consented to putting a stay on the initial order until MIT can file its motion.

MIT's concern -- as it was in a separate legal fight concerning releasing the evidence used against Aaron -- is apparently that the released documents will reveal which MIT employees helped with the investigation, and that could lead to unwarranted harassment. However, as Poulsen notes, the documents that have already been released have been redacting those names, so it's unlikely that these further releases would leave those same names unredacted.

The larger issue, however, is that an institute of higher learning, one which supposedly supports information sharing and knowledge transfer, is intervening in a FOIA case to actively support keeping information from the public. This is quite incredible, and a rather shameful move from the MIT administration, following a string of similarly shameful moves having to do with how it handled the Swartz situation from the very beginning. As Poulsen notes, the situation is incredibly rare:

I have never, in fifteen years of reporting, seen a non-governmental party argue for the right to interfere in a Freedom of Information Act release of government documents. My lawyer, David Sobel, has been litigating FOIA for decades, and he’s never encountered it either. It’s saddening to see an academic institution set this precedent.

MIT was one of the first universities to support open online courses. It has a long history of encouraging the open exchange and sharing of knowledge and information. It seems like quite a departure from its history and mission to suddenly focus on trying to increase the government's secrecy and blocking access to information.

from the who's-hiding-what? dept

Last Friday, Aaron Swartz's lawyers asked the court that had been overseeing his case to lift a protective order on material submitted during discovery, which Swartz's family and lawyers say will help show how bogus the case against him was -- and which they've hinted will show how MIT went way too far in trying to help prosecutors go after Swartz. According to exchanges between Swartz's lawyer, Elliot Peters, and MIT staff (including MIT President Rafael Reif), MIT has argued that such documents should not be revealed because (a) it might violate the privacy of MIT employees and (b) because MIT never intended the info to be public. Peters discovered this after a reporter for the Wall Street Journal forwarded him the following statement from MIT:

The decision to lift the protective order rests with the judge who put it in place.
Documents provided by MIT in the Swartz case included individual names and
information regarding MIT employees. It is MIT policy and practice to protect
employee privacy. MIT provided the documents under the express understanding
that they would be protected from disclosure, which is the purpose of the
protective order. Given this, we are concerned about any public release of
information about individual MIT employees: we will seek to protect their
privacy. At the same time, MIT is eager to share important facts about its actions
in the Aaron Swartz matter with the public: Professor Hal Abelson has been
charged by President Rafael Reif with conducting an analysis that will be made
public in the coming weeks.

Peters, quite reasonably, found this statement to be absurd. Especially the part about MIT claiming that it provided the documents in the belief that they would be kept secret. As Peters noted in response, this was obviously untrue.

"This statement is an insult to my intelligence. The documents were provided to the government before any protective
order was entered, and directly contrary to this statement, with the express understanding that they would be used in a
criminal prosecution', which would lead to a PUBLIC TRIAL, at which time the documents would be offered into evidence
and the witnesses would testify, in public. MIT never could have expected these materials not to become public, and I
find this statement to be shockingly misleading and insincere."

Around this same time, the Congressional investigation into Swartz's prosecution requested the same information. Given that, Swartz's legal team met with the DOJ to discuss releasing the documents currently under protective order. They agreed to redact certain personal information (phone numbers, emails, home addresses, social security numbers, birthdays), as well as the names of four people who were questioned during the investigation, but who "were not actively involved in either the Government's or any institution's investigation" into Swartz. However, where the conversations broke down was over redacting the names and info of just about everyone else: law enforcement, MIT employees and JSTOR employees.

Swartz's lawyer argues that this information should be public and if the case had gone forward would have been public:

As described above, the circumstances in this case have changed dramatically. Perhaps
most obviously, with Mr. Swartz's death, there is no longer a case to prosecute and thus no
danger that disclosure will impede a fair trial. Mr. Swartz's tragic death has also led to an
increase in public interest in both the details of the investigation and prosecution and the
reasonableness of prosecutions under the CFAA generally. In its discussions with Mr. Swartz's
counsel about modifying the Protective Order, the Government has not, to date, asserted any
reliance interest based on the Protective Order. Even if it were to assert such an interest, any
Government reliance on the Protective Order's terms is tempered by the fact that it is a blanket
order and therefore inherently overinclusive. As this District explained in Bulger, modification
of such a blanket order is not unusual. Id. at 54. As a result, the only interest left to be balanced
against the significant public interest in access to unredacted documents is the alleged privacy
interest of the government employees and third party individuals named in the discovery
materials. For the reasons discussed below, those interests are minimal and are overcome by the
public interest in the disclosure of these documents.

They further note that hiding the names of those actually responsible will make the Congressional investigation into what happened much more difficult. Second, the information was provided initially without any expectation that this info would be kept private, so to ask for it to be kept private now makes little sense. In fact, they note that most of the people named, who the government and MIT wish to redact, were likely potential witnesses had the trial been able to move forward. "Consequently, MIT and JSTOR cannot now claim any reliance interest on behalf of their employees in the continued privacy of their emails at the time they produced the emails at issue to the government." They further point out that most of the names in question are already public and highlight press accounts and previous releases of documents in the case that specifically name: "MIT employees Dave Newman, Paul Acosta, Ellen
Duranceau, Ann Wolpert, Mike Halsall, and Mark Sillis and JSTOR employee Brian Larsen,
identifies their positions, and quotes their email communications." Given that this is already public, it seems odd to further seek to redact their participation.

The argument in the other direction is that the attention this case has received means that names of such folks might lead to threats, but Swartz's lawyer says there has been no evidence presented of any threats to MIT or JSTOR employees -- and even if there was, that wouldn't necessitate blocking out info on all such employees.

Separately, his lawyers point out that redacting law enforcement officials names makes even less sense, given that they are public employees.

Days after this motion was filed, MIT "responded" by agreeing to release the documents itself... but with those same redactions requested by the DOJ. MIT President Reif has tried to spin this as being "in the spirit of openness, balanced with responsibility." Of course, that doesn't make much sense. The DOJ has already agreed that this same level of information should be released, so MIT isn't doing anything here other than making it appear -- falsely -- as if it is making some concession towards openness. On top of that, MIT has said it will not release this info until its overall investigation is over.

Not surprisingly, Swartz's family is not particularly impressed by all of this. In a statement provided to us, Swartz's girlfriend, Taren Stinebrickner-Kauffman, notes that this is misleading not just because MIT isn't doing anything new here, but also in that this isn't MIT's decision at all.

“I welcome President Reif's commitment to transparency. However, this announcement is misleading. MIT does not get to decide in what form the evidence is released publicly. The judge does. MIT has already given this evidence to the courts, at which point it gave up proprietary control over the evidence. President Reif's decision simply foreshadows the inevitability that the judge will release at least this much of the evidence. It sets a low bar, but it does not decide the matter. The redacted documents MIT is releasing only tell one part of the story. Huge amounts of information would still be hidden beneath the protective order -- information that MIT's investigators themselves will not have access to unless the protective order is lifted. If MIT is really committed to transparency and having a full, complete investigation, they need to join the call with Aaron’s lawyers to lift the protective order."

Similarly, Aaron's father, Robert Swartz, noted that this is not a concession by MIT, and that MIT already gave up its rights to these documents, so trying to control how they are disseminated makes little sense.

"This is not a change in MIT's position. MIT could have no expectation of privacy or security since this evidence was given to the government with the understanding that it was evidence in a public trial,” said Robert Swartz, Aaron’s father. “They understood when they gave these documents to the government that they had no rights to privacy or security. MIT should release all internal communications related to this case whether or not they were provided to the government including all internal communications they had related to how they handled it and decided not to ask the government to drop the case."

Stinebrickner-Kauffman also pointed out that "if MIT wished to protect these people's privacy, MIT should not have become involved in the criminal trial to begin with. They made a calculated decision not to nip this case in the bud. They don't get to avoid the consequences now, after Aaron’s death."

The Faculty of the Massachusetts Institute of Technology is committed to disseminating the fruits of its research and scholarship as widely as possible. In keeping with that commitment, the Faculty adopts the following policy: Each Faculty member grants to the Massachusetts Institute of Technology nonexclusive permission to make available his or her scholarly articles and to exercise the copyright in those articles for the purpose of open dissemination. In legal terms, each Faculty member grants to MIT a nonexclusive, irrevocable, paid-up, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, provided that the articles are not sold for a profit, and to authorize others to do the same. The policy will apply to all scholarly articles written while the person is a member of the Faculty except for any articles completed before the adoption of this policy and any articles for which the Faculty member entered into an incompatible licensing or assignment agreement before the adoption of this policy.

This is a good policy, and one you would hope that other universities would adopt as well.

But, in light of the situation with Aaron Swartz, it just makes it that much more baffling why MIT helped push the case forward and, despite repeated requests to do so, failed to join JSTOR in asking the feds to drop the case. Here is MIT, a school that has widely embraced both the hacker culture and the widespread and free dissemination of academic research, and it helped push forward and supported a massively over-aggressive campaign by the Justice Department against Aaron for embracing the same principles the school itself publicly supports. It's incredible, baffling... and disappointing.

from the makes-no-sense dept

Many have noted that the US Attorneys had made a new filing on the day that Aaron Swartz committed suicide. While the filing may look like just a standard procedural filing, some are pointing out that it highlights some highly unusual activity in the case. It had to do with Swartz's motion to get some of the evidence blocked from being used in the case, over questions concerning how it was collected. But one of the key things that come out is that, for unexplained reasons, the Secret Service took over the case just two days before Aaron was arrested:

MIT and JSTOR conferred regarding methods to prevent excessive downloading. Timeline
at 3-4. On December 26, 2010, there was another episode of excessive downloading, which MIT
personnel did not learn of until on or about January 3, 2011. On the morning of January 4, 2011, at
approximately 8:00 am, MIT personnel located the netbook being used for the downloads and
decided to leave it in place and institute a packet capture of the network traffic to and from the
netbook. Timeline at 6. This was accomplished using the laptop of Dave Newman, MIT Senior Network Engineer, which was connected to the netbook and intercepted the communications coming
to and from it. Id. Later that day, beginning at 11:00 am, the Secret Service assumed control of the
investigation.

As Emptywheel points out, it doesn't make any sense for the Secret Service to be involved in such an issue:

The same filing shows that MIT allowed all of this to happen despite no warrant, court order, or subpoena -- just handing over all sorts of info.

The disclosure took place only after the MIT General Counsel’s Office
approved the disclosure of the information to law enforcement authorities even in the absence of a
warrant or court order or subpoena – and at a time when MIT personnel were acting as government
agents – and in contravention of MIT policy that such information, which exceeded that found in
bank records or telephone toll records, would be disclosed only upon the receipt of lawful court
orders or subpoenas, i.e., process complying with the Stored Communications Act, 18 U.S.C. Â§2701
et seq. See Section IV, infra. In a separate email from Halsall to S/A Picket on January 8, 2011,
Halsall told Pickett that he “hop[ed] to have the pcap/flows/videos/logs all in by to me Monday,
possibly sooner – if you don’t already have a copy of the video or pcap [packet capture], I’ll make
sure you get one.” Exhibit 2. No warrant or court order has been provided to counsel which would
evidence the government’s having, even post-interception, acquired the contents of the warrantless
interceptions by seeking judicial authorization as required.

As more and more people are looking at the details of what went down in arresting and pressuring Aaron, the case just looks worse and worse.

from the trumped-up-kicks dept

Not much has been said about the Aaron Swartz case over the past year as the wheels of "justice" slowly grind their way to an eventual court date. Swartz, the executive director of Demand Progress, was charged with violating the Computer Fraud and Abuse Act, a catch-all designation for "computer activity the US government doesn't like."

Swartz had accessed MIT's computer network to download a large number of files from JSTOR, a non-profit that hosts academic journal articles. US prosecutors claimed he "stole" several thousand files, but considering MIT offered this access for free on campus (and the files being digital), it's pretty tough to square his massive downloading with any idea of "theft."

Not only that, but JSTOR was not the entity pressing charges. It had stopped the downloading and secured the "stolen" content, along with receiving assurances from Swartz that the files would not be distributed. Despite this, the feds felt compelled to arrest Swartz and charge him with four felony counts (one each for Wire Fraud, Computer Fraud, Theft of Information from a Computer and Recklessly Damaging a Computer). At this point, Swartz was looking at a possible 35-year sentence and over $1,000,000 in fines.

It's beyond my pay grade to figure out how many years in prison that all could be, when taking into account the complexities of sentencing law. Let's leave it at a large scary number. Enough to ruin someone's life.

The new filing basically realleges all the original charges but ups the felony count by providing specific dates for each action, turning each marked date into its own felony charge. The allegations refer to Swartz's "repeated" actions as spanning several months, but the feds have pulled some arbitrary dates into the mix to add years and dollars onto his possible sentence. And, again, we have to ask: for what?

JSTOR only showed up because it was subpoenaed and if anyone's the "victim" here, it would be JSTOR. MIT has remained silent on the whole issue. So, either someone's got a deeper interest in this case than they're willing to admit publicly, or the feds found someone with enough "hacking" activity under their belt that they feel comfortable turning the defendant into an "example." Or perhaps this is a belated payback for his thorough gaming of the PACER system during a "free trial" period, something the feds briefly investigated him for back in 2009. It went nowhere as the documents involved were public records, but it had to gall them a bit that he managed to download nearly 20 million pages of text, about 20% of the entire database, before being stopped. (The government likes to collect 8 cents a page for PACER documents, meaning Swartz's stunt "cost" it nearly $1.6 million, assuming you have no idea how to properly measure "costs.")

So, how do the new charges stack up in terms of a sentence? Tough to say. Each of the charges carries the possibility of a fine and imprisonment of up to 10-20 years per felony. Depending on how many of the counts Swartz is found guilty of, the sentence could conceivably total 50+ years and fine in the area of $4 million. All this over publicly accessed research documents that JSTOR doesn't even feel the need to pursue further than it did.